1. Application area
1.1 The General Terms and Conditions (GTC) of Peak & Peak GmbH (Peak & Peak) shall only apply to persons who are not consumers within the meaning of § 13 BGB (German Civil Code).
1.2 The customer accepts exclusively the validity of these General Terms and Conditions for business transactions with Peak & Peak. The customer waives his own general terms and conditions. Deviating agreements may be contractually agreed between the parties. This requires the written form and the express consent of both contractual parties.
1.3 The general terms and conditions are available at www.peakpeak.de.
2. Conclusion of contract
2.1 As a rule, Peak & Peak conducts a so-called "scoping" at the customer's premises before preparing an offer or at the latest before the conclusion of the contract. In this process, the prerequisites and circumstances for successful performance of the service are examined. During this scoping, the customer is informed of possible risks or defects that could impede the proper performance of the service.
2.2 If an offer from Peak & Peak is described as non-binding, a legally effective contract between the parties will only be concluded if the customer places an order with Peak & Peak and Peak & Peak accepts it.
2.3 If an offer from Peak & Peak is not designated as non-binding, the contract between the parties will become legally effective if the customer accepts the offer within the acceptance period. If no acceptance period has been specified by Peak & Peak, a period of four weeks from the date of the offer shall apply. Receipt by Peak & Peak is decisive for acceptance.
2.4 Insofar as Peak & Peak uses the services of third parties, these will not become contractual partners of the customer unless otherwise agreed.
2.5 All declarations essential for the conclusion of the contract must be made in text form.
3. Subject of the contract
The nature and scope of the services to be provided by Peak & Peak are set out in the corresponding offer and, if applicable, further performance descriptions which can be taken from contracts, concepts or similar documents.
4. Performance dates and delays
4.1 Both parties agree on all service dates in principle in text form before the beginning of the contract implementation.
4.2 Peak & Peak is not responsible for delays in performance due to force majeure (strike, official order, disruption of telecommunications, etc.), circumstances within the customer's area of responsibility (failure to perform the obligation to cooperate, changes to the project, etc.) as well as events that make it significantly more difficult or impossible for Peak & Peak to perform the service owed.
4.3 If Peak & Peak is in default with essential contractual services, the customer must set a reasonable grace period for the provision of the service before the customer is entitled to withdraw from the contract. The grace period must be set in text form.
5. Changes in performance
5.1 Peak & Peak reserves the right to make minor changes or minor extensions to services for the same remuneration. This applies in particular in the event of changes in the legal situation or changes customary in the industry.
5.2 If the customer has change requests to Peak & Peak, these will be evaluated by both parties and must then be approved jointly and in writing to become part of the contract.
6. Obligations to cooperate
6.1 The customer undertakes to provide Peak & Peak with all information relevant to the order. Missing, new or changed information and circumstances are to be communicated by the customer to Peak & Peak immediately (without culpable delay). If the immediate notification by the customer is not made in text form (telephone call or in person), the customer must again notify Peak & Peak in text form at the earliest possible time about changed information or circumstances.
6.2 The customer must notify Peak & Peak immediately in text form of any changes in its company, address or other contact information.
6.3 The customer shall support Peak & Peak in the performance of the contractual service by providing information, documents, data material as well as software (hereinafter: auxiliary means).
6.4 The customer must provide Peak & Peak with all aids necessary for the performance of the contract. If auxiliary means are provided by the customer in part or not in a timely manner, Peak & Peak has the right to invoice the additional expenditure incurred.
6.5 The customer is obligated to make available a sufficient number of its own employees who possess the necessary expertise to perform the contractual relationship.
6.6 The customer will enable Peak & Peak to install software if this is necessary for the use of the services of Peak & Peak and the customer is unable to carry out the installation himself.
6.7 The customer acknowledges that all modification work on the work results or services provided by Peak & Peak may in principle only be carried out by Peak & Peak. Exceptions must be agreed in writing.
7. Violation of obligations to cooperate
7.1 If the customer culpably violates an obligation to cooperate, Peak & Peak has the right to request the customer in writing to comply with the obligation to cooperate. After two unsuccessful requests due to one or more breaches of duty by the customer, Peak & Peak is entitled to withdraw from the contract or, in the case of continuing obligations, to terminate the contract without notice. The obligation to pay remuneration by the customer remains unaffected by this in principle.
7.2 Furthermore, the customer is obligated to compensate Peak & Peak for all damages, additional expenses, including lost profits, resulting from Section 7.1.
8. Prices, remuneration, costs
8.1 All prices are based on Peak & Peak's offer and are generally net prices plus statutory value-added tax.
8.2 If the customer and Peak & Peak have not entered into a clear agreement on the remuneration for the services of Peak & Peak, remuneration will be based on the time spent and the underlying remuneration rates. Cost estimates and budget planning are generally non-binding.
8.3 Additional expenses caused by the customer and additional costs incurred for additional services requested by the customer which are not included in the order will be invoiced separately and paid for by the separate customer.
8.4 Cost increases that occur after conclusion of the contract and for which Peak & Peak is not responsible will be charged to the customer. The customer is thereby neither entitled to withdraw from nor terminate the contract. An exception is a cost increase of more than 20 percent of the agreed total price.
9. Terms of payment
9.1 Unless otherwise agreed, Peak & Peak will invoice the remuneration as stated in the offer. In principle, advance payments of the performance fee in several instalments shall apply. Payment from the customer to Peak & Peak is due no later than seven days after receipt of the invoice and without deduction, including value-added tax (gross). Payment is made by bank transfer to an account specified by Peak & Peak.
9.2 Costs for server rentals, domains, SSL certificates and similar services are charged annually in advance. The customer shall settle the claim no later than ten days after receipt of the invoice. These costs are always listed as a separate invoice item.
9.3 Any objections of the customer to statements of charges by Peak & Peak must be raised in text form. Invoices shall be deemed approved by the customer if the customer has not objected to them within two weeks. Receipt by Peak & Peak is decisive for compliance with the deadline.
10. Property rights, rights of use and reservation of payment
10.1 Until payment of the remuneration in full, the services delivered or rendered, in particular campaigns and strategies created, remain the property of Peak & Peak. The granting of agreed rights of use to the contractual services is also subject to the reservation of title until full payment of the agreed remuneration.
10.2 The granting of ownership, possession and usage rights to program codes of software programmed by Peak & Peak is governed by the individual agreements made with the customer. If no clear individual agreement has been reached between the parties, only a simple and non-transferable right of use shall be granted to the customer. The same applies to program libraries and source code libraries. Peak & Peak is also entitled to use the corresponding source codes and program libraries for other projects and to grant rights of use for these as well.
10.3 The ownership, possession and usage rights to all preliminary work and interim results, such as concepts, sketches and drafts, shall remain with Peak & Peak, irrespective of the payment of the agreed remuneration. Peak & Peak is further entitled to use or further develop these preliminary works for other projects or customers.
10.4 Furthermore, Peak & Peak has the unrestricted right to advertise its own products and services (including trade fairs, presentations, invitations to tender, etc.). Furthermore, Peak & Peak has the right to display the customer's company and its identification marks for reference purposes. An exception to this is an agreement in advance, agreed in writing by both parties, to maintain silence.
10.5 In all other respects, the extent to which rights of use are granted is governed by individual contractual agreements and the statutory provisions.
11. Default of payment
11.1 If a customer is in arrears with its payment obligations, Peak & Peak is entitled, after setting and expiration of a reasonable grace period, to discontinue or withhold the website and all other contractual services until the customer's payment obligations have been met in full or, after consultation with Peak & Peak, in part. The customer shall pay a flat rate of 50 euros (net) for the reactivation of the Internet presence.
11.2 In the event of late payment, Peak & Peak is also entitled to charge interest on arrears at the respective statutory rate, but at least eight percentage points above the base interest rate of the European Central Bank. Per invoice Peak & Peak expressly reserves the right to assert further claims for damages caused by default.
12. Warranty for defects on the part of Peak & Peak
12.1 The customer shall comply with the duties of examination and notification of defects according to § 377 HGB (German Commercial Code). Recognizable defects in the contractual performance shall be notified in writing by the customer no later than three weeks after delivery or provision.
12.2 Peak & Peak is entitled to refuse subsequent performance until the customer is no longer in default with payment obligations.
12.3 The warranty for all defects is twelve months from the date of delivery.
13. Duties of the customer to cooperate in the event of subsequent performance by Peak & Peak
13.1 The customer is obliged to take all reasonable and necessary measures to enable an immediate assessment of the defects and any damage and its causes. The customer shall comply with his statutory duty to minimize damages.
13.2 The customer must reimburse Peak & Peak for all costs incurred through subsequent performance if the defect or damage is not within the area of responsibility of Peak & Peak. Invoicing shall be based on the applicable remuneration rates and separate invoicing and payment.
14. Limitation of liability
14.1 Peak & Peak shall not be liable for malfunctions, defects or damage caused by the customer's aids.
14.2 Peak & Peak is not liable for malfunctions, defects or damage that are due to unauthorized changes made by the customer to the contractual service.
14.3 Peak & Peak is not liable for malfunctions or failures of the infrastructure or the transmission paths of the Internet.
14.4 Peak & Peak is not liable for the loss of data and programs if the customer has failed to carry out data backups or similar measures so that data can be restored.
14.5 Peak & Peak shall be liable for damages resulting from injury to life, body and health in accordance with the statutory provisions. This also applies to intent and gross negligence on the part of Peak & Peak. Mandatory statutory liability for product defects also remains unaffected.
14.6 In the case of slight negligence, Peak & Peak shall only be liable if obligations essential to the contract have been violated. In such cases, liability is limited to damages that must be typically expected when the contract is created.
14.7 Furthermore, any liability of Peak & Peak is excluded.
15. Offsetting of claims
The customer shall only be entitled to offset claims of Peak & Peak to the extent that these are undisputed and legally binding.
16. Regulations for digital projects
16.1 The contracting parties shall define the type and scope of the digital project (strategies, campaigns, etc.) and the associated services by mutual agreement in text form.
16.2 Peak & Peak will prepare a specification sheet or project documentation by separate agreement and remuneration. The requirements specification is based on the concept and specifies the customer requirements to Peak & Peak. In particular, it is recorded when the customer's requirements are realized by Peak & Peak.
16.3 If Peak & Peak designs or develops a digital project, Peak & Peak reserves the right, after consultation with the customer, to modify or correct the contents specified by the customer in order to ensure an optimum presentation of the project.
16.4 The customer is solely responsible for the legality of the content of the contractual service. The content may not violate applicable law and other regulations or requirements. Peak & Peak shall not be obliged to check or be liable for the content provided by the customer. In the event of serious violations of applicable law by the customer's content, Peak & Peak may notify the customer of this. Furthermore, Peak & Peak is entitled to discontinue the use or publication of obviously inadmissible contents of the customer. The obligation of the customer to pay the remuneration in accordance with the contract remains unaffected by this.
16.5 The contractual services will be tested by Peak & Peak by separate agreement during their creation for their contractual functionality and use. The customer is obliged to cooperate.
16.5.1 Peak & Peak will provide the customer with all information relevant to the test in a timely manner.
16.5.2 In the course of the test, the parties shall draw up a test report by mutual agreement which contains changes, defects or other technical circumstances and is signed by both parties.
16.5.3 If the customer does not report defects or deviations in the creation performance in the course of the test, the creation services will be deemed to have been performed by Peak & Peak in accordance with the contract. If the customer culpably fails to fulfill his obligation to participate in the test or fails to do so completely, the corresponding provisions shall apply. The customer's obligation to point out recognizable defects even after the test has been performed remains unaffected by this.
18. Support and maintenance
18.1 After the end of the term of the agreement, a separate agreement with separate remuneration and billing must be concluded between the parties for the use of the support and maintenance services of Peak & Peak. Invoicing is generally carried out by means of an individual support flat rate or or additionally on a 15-minute basis and at the current remuneration rates of Peak & Peak. Individual changes and adjustments are generally possible and must be made in writing.
19. Provider and provider-like services
The customer authorizes Peak & Peak in its name and on its account to apply for a domain name and to create a domain. Peak & Peak is not liable for the availability of the domain name. Furthermore, Peak & Peak does not guarantee that the domain desired by the customer is or will be available in the long term.
20. Data protection
20.1 Peak & Peak collects, processes and uses personal data within the framework of the data protection regulations without further consent only if this is necessary for the execution of the contract or for invoicing.
20.2 The customer is expressly advised that comprehensive data protection for data transmissions in open networks cannot be guaranteed. The customer is aware that the provider can, from a technical point of view, view data stored on web servers at any time. Unauthorized third parties may also be able to influence data and data traffic. For data stored on web servers, the customer is solely and fully responsible for the care taken.
21.1 The data, documents, knowledge, ideas and experience exchanged between the parties shall not be made available to third parties. The obligation of secrecy shall also apply to both parties beyond the termination of the contractual relationship.
21.2 Documents handed over by one party to the other party to the contract, for which there is no legitimate interest in possession after termination of the contractual relationship, shall be handed over to the other party to the contract.
22. Prohibition of enticement
During the duration of the cooperation and for the period of one year thereafter, the customer is not permitted to poach employees from Peak & Peak. In case of culpable violation, the customer shall pay an appropriate contractual penalty, which in case of dispute shall be reviewed by a competent court.
23. Assignment of claims
The assignment of one or more claims is only permitted with the prior and written consent of the other contracting party. The consent may not be refused without justification.
The customer can only assert a right of retention due to claims arising from the respective contractual relationship.
25. Final provisions
25.1 Changes or amendments to these GTC or the respective contract as well as notices essential to the contract must be made in writing and with the consent of both parties.
25.2 Invalid or void provisions of the respective contract of the parties and the GTC shall not result in the invalidity or voidness of the contract or the GTC. Ineffective or void provisions shall be adjusted by both parties, taking into account the economic purpose, in such a way that they come as close as possible to the legally permissible framework.
25.3 The place of performance is Mannheim, Baden-Württemberg, Germany.
25.4 Place of jurisdiction is the registered office of Peak & Peak. Currently Mannheim, Baden-Württemberg, Germany, local court.
25.5 The law of the Federal Republic of Germany applies.